Workplace Safety and Insurance
Appeals Tribunal

Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning
workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the
Workplace Safety and Insurance Board.

The worker was a client service worker at a men's shelter. On August 14, 2008, the worker and other co-workers were asked to escort a client from the premises. The client resisted and an altercation ensued. The workers had to restrain the client until the police arrived. The employer cleared the workers of any wrongdoing. However, the client filed a police complaint, which resulted in the worker and co-workers being charged with assault. The employer advised that it would not provide legal support in defending the charge. The initial court appearance was on December 10, 2008, at which time the worker assumed the charges would be dropped, but he was told that the charges would proceed and that he should obtain a lawyer. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress.The refusal of the employer to provide legal or financial support was in accordance with the collective agreement, which provided that employees are responsible at first instance for their own defence but that they would be reimburse up to $25,000, if acquitted. The employer submitted that the event which caused the worker's stress was the employer's decision not to provide legal or financial support and that the employer's decision was part of the employment function and, thus, specifically excluded from entitlement under s. 13(5) of the WSIA. The Panel agreed that the employer's decision was part of the employment function but found that the refusal to provide legal representation in the first instance was solely related to that decision.The Panel found that the assault charge and its impact on the worker was the main significant contributing factor to the worker's condition. The assault change was the direct result of the workplace incident on August 14.The employer submitted that the worker did not suffer an acute reaction, in that the onset of symptoms did not occur until the end of November, which was more than four weeks after the incident in August. However, the Panel noted that Board policy contemplates that an acute reaction may be immediate (within four weeks of the traumatic event) or delayed (more than four weeks after the traumatic event. In any case, the traumatic event was not the incident on August 14, but the criminal charge of which the worker was notified on October 30.The employer submitted that the criminal charge was not a sudden and unexpected traumatic event. The Panel noted that Decision No. 483/11 shifts the focus away from whether the event involved a serious threat of physical harm, although there will usually be such a threat. Tribunal case law is consistent in finding that the event must be objectively traumatic. The Panel was satisfied that the criminal charge of assault, which carries the threat of criminal conviction and incarceration, qualified as an implicit threat to personal security and was a sudden and unexpected traumatic event.The worker had entitlement for traumatic mental stress. The appeal was allowed.